This terms of use agreement (“Agreement”) is entered into by and between you (“Customer”), and AgenceDeBrevets.ca PatentAgency.ca (Tremolant Inc.), having offices at 202-95 Victoria, Gatineau, Quebec J8X 2A3 and email address tremolant@tremolant.com (“Consultant”).

In consideration of the mutual covenants and promises set forth below, the parties agree as follows:

1. Services

1.1.    

Statement of Work. All services to be performed by Consultant under this Agreement (“Services”) may be set forth in a statement of work (“Statement of Work”) generated by Consultant’s Software. Each Statement of Work may set forth the description of the Services to be done and fees for the Services to be performed, and other matters as the parties may agree upon.  

1.2.    

Provisions of Services. Consultant agrees to use commercially reasonable efforts to provide the Services to Customer in accordance with the terms and conditions of this Agreement and the applicable Statements of Work, if any.

1.3.    

Estimated Times. The parties agree that, unless otherwise expressly stated in a particular Statement of Work or otherwise agreed in writing, where a time or amount of Services required for a particular task or deliverable is described in a Statement of Work, or otherwise, it is an estimate only.

2. Third Party Documents, Products and Services

2.1

Unless otherwise stated in a particular Statement of Work, Customer will arrange for third party documents, products and services required for implementation of the Statement of Work, including third party software and tools. CONSULTANT MAKES NO WARRANTY REGARDING THIRD PARTY PRODUCTS AND SERVICES.

3. Performance of Services; Changes

3.1.    

Consultant will determine the details and means of performing the Services to be performed for Customer on the basis of Customer’s disclosure, guidance, and direction. Services will be performed at such times and at such places as Consultant deems appropriate.

3.2.    

Changes to any Statement of Work can be made only by written change order agreed upon by both parties or by an additional Statement of Work. Any change to a Statement of Work which is agreed to by the parties will specify the changes ordered, any increase or decrease in the estimated charges for performance, timing issues, and any changes to other matters as may be affected.

4. Payment

4.1.    

Customer will pay Consultant at the fee rates specified in the Statements of Work. If rates are not specified in the relevant Statement of Work, Services performed by Consultant on behalf of Customer will be undertaken on a time and materials basis at Consultant’s applicable standard rates.  If any statement of work is undertaken at a discounted rate, or a fixed rate, any overage or additional statements of work will be undertaken at standard rates.

4.2.    

Customer will reimburse Consultant for reasonable out-of-pocket expenses incurred in the provision of Services, including, without limitation, all travel, accommodation, and meal expenses for Services performed at Customer site or other site requested by Customer, if applicable.

4.3.    

Consultant will render invoices to Customer on a transactional basis, indicating the Services for which the invoice is rendered, the period of time it covers, the fees due, and any other additions, expenses or taxes (evidenced by receipts), and any other detail reasonably required for Customer to verify the amount invoiced. All invoices submitted under this Agreement and the Statements of Work will refer to this Agreement and the applicable Statement of Work.

4.4.    

Customer will pay all invoices within thirty (30) days of receipt. In the event that Customer wishes to dispute an item or items on an invoice, Customer will notify Consultant in writing within fourteen (14) days of receipt of that invoice, setting out its reasons in reasonable detail. If no notice of dispute is received by Consultant fourteen days after receipt of an invoice by Customer, the invoice will be deemed accepted, and Customer will be obliged to pay the invoice in accordance with its terms. In case of a dispute regarding billing, Customer must pay all undisputed charges and items.

4.5.    

Customer is responsible for all taxes resulting from the Services, including any sales taxes, but excluding taxes on Consultant’s net income. Consultant may bill for such taxes and pay them to the relevant tax authorities.

4.6.    

If Customer fails to pay any amount payable by it under this Agreement within 30 days of receipt of an invoice, Consultant will be entitled to charge and Customer will pay 1.50% interest per month (or if less the highest legal rate), compounded daily, on the overdue amount.

5. Personnel

5.1.    

Consultant will perform the Services by its own means and/or by means of the services of suitably experienced staff and/or may delegate its obligations hereunder by commercially reasonable use of one or more subcontractor individuals or firms, provided that, in any case, Consultant will remain responsible for provision of Services as required by this Agreement. The individuals who provide Services under this Agreement are the “Personnel.”

5.2.    

Consultant will seek to ensure continuity of staffing for Services under each Statement of Work. Consultant, from time to time, may replace Personnel with suitably experienced alternative Personnel or subcontractors.

5.3.    

Consultant will determine matters such as Personnel’s working hours and holidays taking into account Customer’s business requirements. Personnel may take provincial, federal, and local holidays.

6. Cooperation; Facilities to Be Provided by Customer

6.1.    

Customer agrees to provide reasonable cooperation to Consultant and access to and full disclosure of information that Consultant reasonably requires to perform its obligations under this Agreement.

6.2.    

Customer will make available to Consultant (including its subcontractors and any third parties contemplated within this Agreement) free of charge any premises, facilities, assistance, information, and services reasonably required to enable them to perform the Services.

6.3.    

Where the Services are to be provided at the premises other than that of Customer, it is the responsibility of Customer to ensure that the foregoing are provided at such location.

7. Independent Contractor

7.1.    

The parties agree that Consultant is acting, in performance of this Agreement, as an independent contractor. The parties agree that the Personnel supplied by Consultant hereunder are not Customer’s employees or agents.

7.2.    

Consultant will be solely responsible for the payment of compensation and benefits to the Personnel and the Personnel will not be entitled to the provision of any compensation or benefits by Customer.

7.3.    

This Agreement is mutually non-exclusive. Customer will retain the right to have services of the same or a different kind performed by its own personnel or other consultants, and Consultant will retain the right to provide similar services to others.

8. Confidentiality

8.1.    

The confidentiality provisions of this Agreement replace any other written agreement between the parties regarding confidentiality that was in effect as of the date of this Agreement.  The Consultant and Customer therefore agree to terminate any other written agreement between the parties regarding confidentiality.

8.2.    

“Confidential Information” means non-public information, data or know-how of a party and/or its affiliates, which is furnished directly or indirectly to the other party in written or tangible form in connection with this Agreement. Each oral disclosure of a party will also be deemed Confidential Information if the recipient should reasonably understand it to be non-public information.

8.3.    

Notwithstanding the foregoing, Confidential Information does not include information which is: (i) already in the possession of the receiving party and not subject to a confidentiality obligation to the providing party; (ii) independently developed by the receiving party; (iii) publicly disclosed through no fault of the receiving party; (iv) rightfully received by the receiving party from a third party that is not under any obligation to keep such information confidential; (v) approved for release by written agreement with the disclosing party; or (vi) disclosed pursuant to the requirements of law, regulation, court order or other applicable requirement, provided that the receiving party shall promptly inform the providing party of any such requirement and cooperate with any attempt to procure a protective order or similar treatment.

8.4.    

Neither party will use the other party’s Confidential Information except as reasonably required for the performance of this Agreement. The confidentiality obligations set forth in this Section shall survive for two (2) years after the termination or expiration of this Agreement, except in regard to Consultant Reusable Documents, which will survive indefinitely. Each party will hold in confidence the other party’s Confidential Information by means that are no less restrictive than those used for its own confidential materials but in any case by commercially reasonable means. Each party agrees not to disclose the other party’s Confidential Information to anyone other than its employees or subcontractors who are bound by confidentiality obligations consistent with this Agreement and who need to know the same to perform such party’s obligations hereunder.  

8.5.    

Upon termination or expiration of this Agreement, except as otherwise agreed in writing or otherwise stated in this Agreement, each party shall, upon the request of the disclosing party, either: (i) return all of such Confidential Information of the disclosing party and all copies thereof in the receiving party’s possession or control to the disclosing party or (ii) destroy all Confidential Information and all copies thereof in the receiving party’s possession or control. The receiving party shall then, at the request of the disclosing party, certify in writing that the requirements of this Section have been carried out and that no copies have been retained by the receiving party, its employees or agents.

8.6.    

In case a party receives legal process that demands or requires disclosure of the disclosing party’s Confidential Information, such party shall give prompt notice to the disclosing party, if legally permissible, to enable the disclosing party to challenge such demand.

8.7.    

The parties acknowledge that damages may not be an adequate remedy for breach of this Section. Therefore, without prejudice to any other rights or remedies, the parties will have the right in the event of such breach or anticipated breach to seek injunctive or other equitable relief to remedy or prevent the breach or anticipated breach.

8.8.

Pursuant to the above, Customer understands that Customer’s Confidential Information that is disclosed to Consultant may become the subject of one or more Patent Applications and may eventually be published by one or more Patent Offices pursuant to the requirements of law and therefore cease to be Confidential Information. This shall therefore serve as full notice of such requirement to Consultant so that no cooperation with any attempt to procure a protective order or similar treatment is required of Consultant prior to the publication of one or more Patent Applications that result from the provision of Services by Consultant.

9. Ownership of Documents

9.1.    

From time to time, Consultant has created document tools and software code and tools and/or will during the course of the Agreement create, and/or improve, document tools and software code and tools that are reusable or are useful for one or more other products, tasks and projects. Such document tools and software code and tools are provided to Customer under this Agreement are termed “Reusable Documents.” Documents created and delivered under this Agreement other than Reusable Documents are “Customer Specific Documents.”

9.2.    

Upon payment of amounts due to Consultant with regard to each Statement of Work, Customer Specific Documents under such Statement of Work will belong to Customer. Customer Specific Documents (including, as applicable, ownership of the electronic information that is not “Reusable Documents”) is hereby assigned to Customer.

9.3.    

Customer agrees that the Consultant Reusable Documents will be the property of and will belong to Consultant. Upon payment of amounts due to Consultant with regard to each Statement of Work, Consultant will be deemed to grant to Customer a non-exclusive, worldwide, perpetual, irrevocable and fully paid up license to retain one (1) copy of the final revision of any Consultant Reusable Documents solely for their records in relation to each Statement of Work.

9.4.    

Except as expressly stated in this Agreement, each party retains its own rights. No rights are created or transferred by implication.

9.5.    

Customer hereby grants to Consultant a non-exclusive and non-transferable license to access and use Customer’s computer and network systems and proprietary software and documents and to use Customer Specific Software (hereinafter “Customer Specific Information”) as reasonably required for Consultant to carry out its obligations under this Agreement.

10. Warranty and Indemnity

10.1.  

Each party warrants that it has all required authority to execute and perform this Agreement.

10.2.  

Customer warrants that it has all required ownership, rights and/or permissions for any materials, software or other items that it provides for Consultant’s use under this Agreement.

10.3.  

Customer agrees to defend, indemnify and hold harmless Consultant from any litigation or proceeding arising from Consultant’s breach of the warranty in Section 10.2.

10.4.  

In case of any claim that is subject to indemnification under this Agreement, the Party entitled to indemnification (“Indemnitee”) shall provide the indemnifying party (“Indemnitor”) prompt notice of the relevant claim. Indemnitor shall defend and/or settle, at its own expense, any demand, action, or suit on any claim subject to indemnification under this Agreement. The Indemnitee shall cooperate in good faith with the Indemnitor to facilitate the defense of any such claim. Claims may be settled without the consent of any Indemnitee unless the settlement includes an admission of wrongdoing, fault or liability on behalf of the Indemnitee.

11. Limitations of Liability

11.1.  

Warranty Exclusion. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, CONSULTANT DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

11.2.  

Damage Disclaimer. Consultant will not be liable to Customer for any special, indirect, consequential, incidental or exemplary damages including without limitation, damages for loss of Customer’s business profits, cost of procurement of substitute goods, technology or services, business interruptions or loss of information, even if Consultant has been advised of the possibility of such damages.

11.3.  

Limitation of Liability. In no event will Consultant be liable to Customer for any amounts in excess in the aggregate of the fees paid by Customer to Consultant during the six (6) month period prior to the date the cause of action arose or, if less, the amount paid to Consultant with regard to the Statement of Work that is relevant to the liability.

12. Non-Solicitation

12.1.  

Customer agrees not to solicit to hire, hire, or otherwise obtain the services of, or to assist any third party to solicit to hire, hire, or obtain the services of any personnel assigned by Consultant to work under any Statement for Work for the duration of Services under such Statement of Work or for one year thereafter.

12.2.  

Because it is impossible to fix with certainty the damage to Consultant for breach of this Section, the parties agree that Customer will pay, for each breach of this Section, as liquidated damages, an amount equal to one hundred percent (100%) of the affected personnel’s average monthly compensation over the most recent six full months multiplied by twelve. Such amount will be due and payable by Customer within ten (10) days of receipt of an invoice from Consultant.

13. Term and Termination

13.1.  

Unless otherwise agreed in writing by the parties, either Customer or Consultant may terminate this Agreement, or any Statement of Work, at any time by giving the other fourteen (14) days written notice of termination, whereupon this Agreement or (as appropriate) the Statement of Work will terminate on the effective date specified in such notice. Termination of a Statement of Work will not operate to terminate this Agreement, unless this Agreement is also terminated in accordance with its terms.

13.2.  

Either Party may terminate this Agreement for cause in the event of: (a) a material breach or default by the other party of an obligation under this Agreement which is not remedied within thirty (30) days after written notice; (b) the other party’s filing for bankruptcy or becoming an involuntary participant in a bankruptcy proceeding, if such involuntary proceedings are not dismissed within sixty (60) days after commencement; or, (c) notice of the inability of the other party to perform due to the existence of a force majeure event for more than thirty (30) days.

13.3.  

Where this Agreement is terminated, each Statement of Work will also be terminated and any Services being provided under that Statement of Work will cease. Consultant will issue, and Customer will pay, an invoice for Services provided up to the date of termination. In case of Customer’s termination without cause, an additional termination fee of $1,000.00 will also be due to Consultant.

13.4.  

On receipt of payment of all amounts due, Consultant will deliver to Customer all work in progress. Uncompleted work in progress will be provided “AS IS” and “WITHOUT WARRANTY,” but otherwise subject to the terms and conditions of this Agreement.

13.5.  

The Sections of this Agreement regarding Confidentiality, Ownership of Documents, Warranties, Limitation of Liability, Term and Termination, Non-Solicitation and General provisions will survive termination, as will accrued rights to payment.

14. Notices

Any notice required to be given by either party hereunder will be in writing and will be hand delivered or sent by courier or pre-paid first class post or by confirmed encrypted e-mail transmission to the party receiving such communication at the address and email address specified below or such other address or email address as either party may in the future specify to the other party. 

15. General

15.1.  

Compliance with Laws. Each party hereby represents and warrants that it will comply with all applicable laws, including without limitation local, provincial or state, and federal laws and regulations.

15.2.  

Assignment. Customer may not assign this Agreement. Consultant reserves the right to transfer this Agreement to a person, firm, or corporation. Consultant may also, without Customer’s consent, transfer this Agreement in connection with the sale or disposition of its business or a line of business relevant to this Agreement, by asset transfer, merger, stock sale or otherwise.

15.3.  

No Third Party Beneficiary. This Agreement is not intended to confer a benefit on, or to be enforceable by, any person who is not a party to this Agreement.

15.4.  

Status as Independent Contractor. Each party is an independent contractor and neither party’s personnel will be considered personnel of the other party for any purpose. This Agreement does not create a joint venture or partnership, and neither party has the authority to bind the other to any third party.

15.5.  

Applicable Law and Jurisdiction. This Agreement will be governed and construed in accordance with the laws of the Province of Quebec without regard to the conflicts of laws or principles thereof. Exclusive jurisdiction and venue for any disputes, claims or litigation arising from or related in any way to this Agreement or its subject matter will lie exclusively in the provincial and federal courts located in the national capital region of Canada. Each party expressly agrees to submit to the personal jurisdiction of such courts.

15.6.  

Waiver. No waiver of a breach of any of the provisions of this Agreement will be deemed a waiver of any preceding or succeeding breach of the same or any other provisions hereof. No such waiver will be effective unless in writing and then only to the extent expressly set forth in writing.

15.7.  

Partial Invalidity. If any provision of this Agreement is invalid or unenforceable under any statute or rule of law, the provision is to the extent to be deemed omitted, and the remaining provisions will not be affected in any way.

15.8.  

Force Majeure. Neither party will be responsible for any delay or failure in performance resulting from acts beyond such party’s control (“Force Majeure”). Force Majeure will include but not be limited to: acts of God, government or war; riots or strikes; epidemics, fires, floods, or disasters.

15.9.  

Modifications. No modification of this Agreement will be effective unless in writing and signed by both parties.

15.10.         

Counterparts. This Agreement may be executed in multiple counterparts, each being deemed an original and this being one of the counterparts. Execution by encrypted email is permitted.

15.11.         

Entire Agreement. This Agreement, including the attached Statement of Work and any supplements, constitutes the entire agreement between Consultant and Customer.

15.12.         

Language. It is the express wish of the parties that this Agreement and all related documents, including notices and other communications, be drawn up in the English language only. Il est la volonté expresse des parties que cette convention et tous les documents s’y rattachant, y compris les avis et les autres communications, soient rédigés et signés en anglais seulement

EN